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What Does Senate Bill 311 Mean for Architects and Engineers?

On October 1, 2017, Senate Bill 311 (“S.B. 311”) becomes effective. S.B. 311 repeals Md. Code Ann., State Fin. & Proc. §§ 3-301 et seq., addressing the proposal and bidding process for architectural and engineering services for Maryland State projects, and enacts what will become Md. Code Ann., State Fin. & Proc. §12-112 (“§ 12-112”). But what does this mean for architects and engineers?

S.B. 311 enacts a slightly different process for bidding projects. There will no longer be a General Selection Board and a Transportation Selection Board. That process will be replaced by a Qualified Based Selection process. This Qualified Based Selection process will be used only for procurement of architectural and engineering services on a competitive basis, including an evaluation of the technical proposals and qualifications of at least two persons.

An architect or engineer will still go to eMaryland Marketplace, where the Department will publish requests for architectural and engineering services from a procurement officer, to search for project opportunities. See id. at § 12-112(d). The procurement officer’s request will include a general description of the services requested and how an interested person may receive information regarding the procurement request, including a comprehensive description of the nature and scope of the architectural or engineering services requested. Seeid. at § 12-112(c).

Just as before, once the Department receives the bids, it shall evaluate the technical proposals and qualifications of the person submitting the proposals and determine an order of priority based on those evaluations. See id. at § 12-112(e). Next, the Department will begin negotiations with the most qualified persons. See id. at § 12-112(f). The Department shall consider the scope and complexity of the architectural or engineering services required and conduct a detailed analysis of the cost of those services. See id. The Department of Transportation must also comply with cost reimbursement limits (including overhead limits), considering the goal of the selection process. See id. If the Department is unable to reach an agreement with the most qualified candidate, it will terminate negotiations with that party and negotiate in the same manner with the next most qualified person and so forth and so on until the Department reaches an agreement. See id. at § 12-112(g) and (h).

Within 30 days after awarding the contract, the Department must publish notice of the award in eMaryland Marketplace. See id. § 12-112(i). All documents relating to the award of a procurement contract will be made available to the public, including the technical resumes and proposals, the procurement contract, scope of services, programs/projects, staff reports, internal worksheet and all other information relating to the negotiation and award of a procurement contract. See id. at § 12-112(j). However, unlike its predecessor, § 12-112, does not require a recommendation to the Board of Public Works.

The remainder of S.B. 311 is very similar to the old Md. Code Ann., State Fin. & Proc. §§ 3-301 et seq. For example, the circumstances under which there may be a waiver of the requirements are the same (e.g., the architectural and engineering requirements cannot be defined well enough, governor declares a state of emergency, public safety is at risk). Additionally, the same types of contracts are prohibited under § 12-112 (i.e., cost-plus-a-percentage-of-cost contract; or a contract that includes fee schedules that are based on a percentage of construction costs). And, the postaudit language in § 12-112 is virtually identical to that found in Md. Code Ann., State Fin. & Proc. § 13-320.

Finally, § 12-112(q) requires the Department of General Services and the Department of Transportation to adopt regulations to carry out § 12-112. Those have not been adopted, yet, as the legislature enacted § 12-112 only on May 25, 2017.